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LETTERS
UPON
WAR AND NEUTRALITY
(1881-1920)
LETTERS TO "THE TIMES"
UPON
WAR AND NEUTRALITY
(1881-1920)
WITH SOME COMMENTARY
BY
SIR THOMAS ERSKINE HOLLAND K.C., D.C.L., F.B.A.
FELLOW OF ALL SOULS COLLEGE SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW MEMBRE (PRESIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL ETC., ETC.
THIRD EDITION
LONGMANS, GREEN, AND CO. 39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK BOMBAY, CALCUTTA, AND MADRAS
1921
PREFACE TO THE FIRST EDITION
For a good many years past I have been allowed to comment, in letters to The Times, upon points of International Law, as they have been raised by the events of the day. These letters have been fortunate enough to attract some attention, both at home and abroad, and requests have frequently reached me that they should be rendered more easily accessible than they can be in the files of the newspaper in which they originally appeared.
I have, accordingly, thought that it might be worth while to select, from a greater number, such of my letters as bear upon those questions of War and Neutrality of which so much has been heard in recent years, and to group them for republication, with some elucidatory matter (more especially with reference to changes introduced by the Geneva Convention of 1906, The Hague Conventions of 1907, and the Declaration of London of the present year) under the topics to which they respectively relate.
The present volume has been put together in accordance with this plan; and my best thanks are due to the proprietors of The Times for permitting the reissue of the letters in a collected form. Cross-references and a full Index will, I hope, to some extent remove the difficulties which might otherwise be caused by the fragmentary character, and the chances of repetition, inseparable from such a work.
T. E. H. EGGISHORN, SWITZERLAND, September 14, 1909.
* * * * *
PREFACE TO THE SECOND EDITION
I have again to thank The Times for permission to print in this new edition letters which have appeared in its columns during the past four years. They will be found to deal largely with still unsettled questions suggested by the work of the Second Peace Conference, by the Declaration of London, and by the, unfortunately conceived, Naval Prize Bill of 1911.
I have no reason to complain of the reception which has so far been accorded to the views which I have thought it my duty to put forward.
T. E. H. OXFORD, January 10, 1914.
* * * * *
PREFACE TO THE THIRD EDITION
This, doubtless final, edition of my letters upon War and Neutrality contains, by renewed kind permission of The Times, the whole series of such letters, covering a period of no less than forty years. To the letters which have already appeared in former editions, I have now added those contained in the "Supplement" of 1916 (for some time out of print) to my second edition; as also others of still more recent date. All these have been grouped, as were their predecessors, under the various topics which they were intended to illustrate. The explanatory commentaries have been carefully brought up to date, and a perhaps superfluously full Index should facilitate reference for those interested in matters of the kind. Such persons may not be sorry to have their attention recalled to many questions which have demanded practical treatment of late years, more especially during the years of the great war.
Not a few of these questions are sure again to come to the front, so soon as the rehabilitation of International Law, rendered necessary by the conduct of that War, shall be seriously taken in hand.
T. E. H. OXFORD, April 25, 1921.
CONTENTS
CHAPTER I
MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES 1
SECTION 1 Friendly Measures 1
The Petition to the President of the United States (1899) 2 Commissions of Enquiry and The Hague Convention (1904) 3 The League of Nations (1919) 7 " " " " ( " ) 8 " " " " (1920) 9
SECTION 2 Pacific Reprisals 9
The Blockade of the Menam (1893) 10 Pacific Blockade (1897) 11 The Venezuelan Controversy (1902) 13 The Venezuela Protocol (1903) 18 War and Reprisals (1908) 18
CHAPTER II STEPS TOWARDS A WRITTEN LAW OF WAR 22
Count von Moltke on the Laws of Warfare (1881) 23 Professor Bluntschli's Reply to Count von Moltke (1881) 26 The United States Naval War Code (1901) 29 A Naval War Code (1902) 31
CHAPTER III
TERMINOLOGY 33
International Terminology (1918) 33
CHAPTER IV
CONVENTIONS AND LEGISLATION 36
Government Bills and International Conventions (1911) 36 The present Bill in Parliament (1914) 38 The Foreign Enlistment Bill (1912) 39
CHAPTER V
THE COMMENCEMENT OF WAR 41
SECTION 1 Declaration of War 41
The Sinking of the Kowshing (1894) 41
SECTION 2 The Immediate Effects of the Outbreak of War 44
Foreign Soldiers in England (1909) 45 The Naval Prize Bill: Civil Disabilities of Enemy Subjects (1911) 47 Enemy Ships in Port (1917) 49
CHAPTER VI
THE CONDUCT OF WARFARE 50
SECTION 1 On the Open Sea 51
The Freedom of the Seas? (1917) 51
SECTION 2 In Other Waters 51
The Suez Canal (1898) 51 " " " ( " ) 51 " " " ( " ) 53 " " " ( " ) 54 The Closing of the Dardanelles (1912) 55 " " " " " ( " ) 58
SECTION 3 In a Special Danger Zone? 59
The German Threat (1915) 59
SECTION 4 Aerial Warfare 61
The Debate on Aeronautics (1909) 61 The Aerial Navigation Act (1913) 63 Sovereignty over the Air (1913) 65 Attack from the Air: The Enforcement of International Law (1914) 66 " " " " The Rules of International Law (1914) 67
SECTION 5 Submarines 69
Germany and the Hague (1914) 69 The "Pirates" (March 13, 1915) 70 Submarine Crews (March 22, 1915) 71 Mr. Wilson's Note (May 16, 1915) 72
SECTION 6 Lawful Belligerents 73
Guerilla Warfare (1906) 73 The Russian Use of Chinese Clothing (1904) 75 The Rights of Armed Civilians (1914) 77 Civilians in Warfare: The Right to take up Arms (1914) 78 Civilians and a Raid (1914) 79 Miss Cavell's Case (1915) 79
SECTION 7 Privateering and the Declaration of Paris 80
Our Mercantile Marine in War Time (1898) 81 " " " " " " ( " ) 84 Our Mercantile Marine in War (1898) 87 The Declaration of Paris (1911) 87 " " " " (1914) 89 " " " " (1916) 91 " " " " (1916) 92
SECTION 8 Assassination 93
The Natal Proclamation (1906) 93
SECTION 9 The Choice of Means of Injuring 94
Bullets in Savage Warfare (1903) 94 Gases (1918) 97
SECTION 10 The Geneva Convention 98
Wounded Horses in War (1899) 98
SECTION 11 Enemy Property in Occupied Territory 100
International "Usufruct" (1898) 101 Requisitions in Warfare (1902) 103
SECTION 12 Enemy Property at Sea 104
Private Property at Sea (1913) 104
SECTION 13 Martial Law 105
The Executions at Pretoria (1901) 106 The Petition of Right (1901) 108 The Petition of Right (1902) 109 Martial Law in Natal (1906) 111
SECTION 14 The Naval Bombardment of Open Coast Towns 112
Naval Atrocities (1888) 113 The Naval Manoeuvres (1888) 113 " " " ( " ) 117 Naval Bombardments of Unfortified Places (1904) 120
SECTION 15 Belligerent Reprisals 123
Reprisals (1917) 123 " ( " ) 124
SECTION 16 Peace 124
Undesirable Peace Talk (1915) 124
CHAPTER VII
THE RIGHTS AND DUTIES OF NEUTRALS 126
SECTION 1 The Criterion of Neutral Conduct 126
Professor de Martens on the Situation (1905) 126 Neutrals and the Laws of War (1915) 127
SECTION 2 The Duties of Neutral States, and the Liabilities of Neutral Individuals, distinguished 129
Contraband of War (1904) 130 Coal for the Russian Fleet (1904) 132 German War Material for Turkey (1911) 135
SECTION 3
Neutrality Proclamations 135
The British Proclamation of Neutrality (1904) 136 " " " " ( " ) 138 " " " " (1911) 141 The Proclamation of Neutrality (1911) 143
SECTION 4
Neutral Hospitality 143
Belligerent Fleets in Neutral Waters (1905) 144 The Appam (1916) 146
SECTION 5
Carriage of Contraband 147
Absolute and Conditional Contraband 147 Contraband of War (1898) 147 Is Coal Contraband of War? (1904) 149 Cotton as Contraband of War (1905) 151 " " " " (1916) 154 Japanese Prize Law (1905) 155 " " " (1915) 157
Continuous Voyages 157 Prize Law (1900) 158 The Allanton (1904) 161
Unqualified Captors 162 The Allanton (1904) 162
SECTION 6
Methods of Warfare as affecting Neutrals 164
Mines 164 Mines in the Open Sea (1904) 164 Territorial Waters (1904) 166
Cable-cutting 168 Submarine Cables (1881) 168 " " in Time of War (1897) 169 " " " " " " ( " ) 171
SECTION 7
Destruction of Neutral Prizes 173
Russian Prize Law (1904) 174 " " " ( " ) 177 " " " ( " ) 178 The Sinking of Neutral Prizes (1905) 179
SECTION 8
An International Prize Court 181
An International Prize Court (1907) 182 A New Prize Law (1907) 183 " " " " ( " ) 186 " " " " ( " ) 189
SECTION 9
The Naval Prize Bill 191
The Naval Prize Bill (1910) 192 " " " " (1911) 194 Naval Prize Money (1918) 195
SECTION 10
The Declaration of London 196
The Declaration of London (1909) 196 " " " " (1910) 197 " " " " (1911) 199 " " " " ( " ) 202 " " " " ( " ) 203 " " " " (1915) 204 " " " " (1916) 205 Germany wrong again (1917) 207
INDEX 209
CHAPTER I
MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES
SECTION 1
Friendly Measures
Of the letters which follow, the first was suggested by a petition presented in October, 1899, to the President of the United States, asking him to use his good offices to terminate the war in South Africa; the second by discussions as to the advisability of employing, for the first time, an International Commission of Enquiry, for the purpose of ascertaining the facts of the lamentable attack perpetrated by the Russian fleet upon British fishing vessels off the Dogger Bank, on October 21, 1905. The Commission sat from January 19 to February 25, 1905, and its report was the means of terminating a period of great tension in the relations of the two Powers concerned (see Parl. Paper, Russia, 1905, No. 3): this letter deals also with Arbitration, under The Hague Convention of 1899.
It may be worth while here to point out that besides direct negotiation between the Powers concerned, four friendly methods for the settlement of questions at issue between them are now recognised, viz (1) Good offices and mediation of third Powers; (2) "Special mediation"; (3) "International Commissions of Enquiry"; (4) Arbitration. All four were recommended by The Hague Convention of 1899 "For the Peaceful Settlement of International Disputes" (by which, indeed, (2) and (3) were first suggested), as also by the amended re-issue of that convention in 1907. It must be noticed that resort to any of these methods is entirely discretionary, so far as any rule of International Law is concerned; all efforts to render it universally and unconditionally obligatory having, perhaps fortunately, hitherto failed.
It remains to be seen how far the settlement of international controversies has been facilitated by the establishment of a "League of Nations" (to which reference is made in the concluding letters of this chapter), and, in particular, by the plan for the establishment of a "Permanent Court of International Justice," formulated by the League, in pursuance of Art. 14 of the Treaty of Versailles, and submitted to its members in December, 1920.
THE PETITION TO THE PRESIDENT OF THE UNITED STATES
Sir,—It seems that a respectably, though perhaps thoughtlessly signed petition was on Thursday presented to President McKinley, urging him to offer his good offices to bring to an end the war now being waged in South Africa. From the New York World cablegram, it would appear that the President was requested to take this step "in accordance with Art. 3 of the protocol of the Peace Conference at The Hague." The reference intended is doubtless to the Convention pour le reglement pacifique des conflits internationaux, prepared at the Conference [of 1899], Art. 3 of which is to the following effect:—
"Les Puissances signataires jugent utile qu'une ou plusieurs Puissances etrangeres au conflit offrent de leur propre initiative, en tant que les circonstances s'y pretent, leurs bons offices ou leur mediation aux Etats en conflit.
"Le droit d'offrir les bons offices ou la mediation appartient aux Puissances etrangeres au conflit, meme pendant le cours des hostilites.
"L'exercice de ce droit ne peut jamais etre considere par l'une ou l'autre des parties en litige comme un acte peu amical."
Several remarks are suggested by the presentation of this petition:—
(1) One might suppose from the glib reference here and elsewhere made to The Hague Convention, that this convention is already in force, whereas it is [1899], in the case of most, if not all, of the Powers represented at the conference, a mere unratified draft, under the consideration of the respective Governments.
(2) The article, if it were in force, would impose no duty of offering good offices, but amounts merely to the expression of opinion that an offer of good offices is a useful and unobjectionable proceeding, in suitable cases (en tant que les circonstances s'y pretent). It cannot for a moment be supposed that the President would consider that an opportunity of the kind contemplated was offered by the war in South Africa.
(3) One would like to know at what date, if at all, the Prime Minister of the British colony of the Cape was pleased, as is alleged, to follow the lead of the Presidents of the two Boer Republics in bestowing his grateful approval upon the petition in question.
Your obedient servant, T. E. HOLLAND. Oxford, October 28 (1899).
Par. 2 (1).—The Convention of 1899 was ratified by Great Britain, on September 4, 1900; and between that year and 1907 practically all civilised Powers ratified or acceded to it. It is now, for almost all Powers, superseded by The Hague Convention, No. i. of 1907, which, reproduces Art. 3 of the older Convention, inserting, however, after the word "utile," the words "et desirable."
Ib. (2).—On March 6, 1900, the two Boer Republics proposed that peace should be made on terms which included the recognition of their independence. Great Britain having, on March 11, declared such recognition to be inadmissible, the European Powers which were requested to use their good offices to bring this about declined so to intervene. The President of the United States, however, in a note delivered in London on March 13, went so far as to "express an earnest hope that a way to bring about peace might be found," and to say that he would aid "in any friendly manner to bring about so happy a result." Lord Salisbury, on the following day, while thanking the United States Government, replied that "H.M. Government does not propose to accept the intervention of any Power in the South African War." Similar replies to similar offers had been made both by France and Prussia in 1870, and by the United States in 1898.
COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION
Sir,—It is just now [1904] especially desirable that the purport of those provisions of The Hague Convention "for the peaceful settlement of international controversies" which deal with "international commissions of enquiry" should be clearly understood. It is probably also desirable that a more correct idea should be formed of the effect of that convention, as a whole, than seems to be generally prevalent. You may, therefore, perhaps, allow me to say a few words upon each of these topics.
Art. 9 of the convention contains an expression of opinion to the effect that recourse to an international commission of enquiry into disputed questions of fact would be useful. This recommendation is, however, restricted to "controversies in which neither honour nor essential interests are involved," and is further limited by the phrase "so far as circumstances permit." Two points are here deserving of notice.
In the first place, neither "the honour and vital interests clause," as seems to be supposed by your correspondent Mr. Schidrowitz, nor the clause as to circumstances permitting, is in any way modified by the article which follows. Art. 10 does not enlarge the scope of Art. 9, but merely indicates the procedure to be followed by Powers desirous of acting under it. In the second place, it is wholly unimportant whether or no the scope of Art. 9 is enlarged by Art. 10. The entire liberty of the Powers to make any arrangement which may seem good to them for clearing up their differences is neither given, nor impaired, by the articles in question, to which the good sense of the Conference declined to attach any such obligatory force as had been proposed by Russia. It may well be that disputant Powers may at any time choose to agree to employ the machinery suggested by those articles, or something resembling it, in cases of a far more serious kind than those to which alone the convention ventured to make its recommendation applicable; and this is the course which seems to have been followed by the Powers interested with reference to the recent lamentable occurrence in the North Sea.
As to the convention as a whole, it is important to bear in mind that, differing in this respect from the two other conventions concluded at The Hague, it is of a non-obligatory character, except in so far as it provides for the establishment of a permanent tribunal at The Hague, to which, however, no Power is bound to resort. It resembles not so much a treaty as a collection of "pious wishes" (voeux), such as those which were also adopted at The Hague. The operative phrases of most usual occurrence in the convention are, accordingly, such as "jugent utile"; "sont d'accord pour recommander"; "est reconnu comme le moyen le plus efficace"; "se reservent de conclure des accords nouveaux, en vue d'etendre l'arbitrage obligatoire a tous les cas qu'elles jugeront possible de lui soumettre."
It is a matter for rejoicing that, in accordance with the suggestion contained in the phrase last quoted, so many treaties, of which that between Great Britain and Portugal is the most recent, have been entered into for referring to The Hague tribunal "differences of a juridical nature, or such as relate to the interpretation of treaties; on condition that they do not involve either the vital interests or the independence or honour of the two contracting States." Such treaties, conforming as they all do to one carefully defined type, may be productive of much good. They testify to, and may promote, a very widely spread entente cordiale, they enhance the prestige of the tribunal of The Hague, and they assure the reference to that tribunal of certain classes of questions which might otherwise give rise to international complications. Beyond this it would surely be unwise to proceed. It is beginning to be realised that what are called "general" treaties of arbitration, by which States would bind themselves beforehand to submit to external decision questions which might involve high political issues, will not be made between Powers of the first importance; also, that such treaties, if made, would be more likely to lead to fresh misunderstandings than to secure the peaceful settlement of disputed questions.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 21 (1904).
Pars. 1-3.—The topic of "Commissions of Enquiry," which occupied Arts. 9-13 of the Convention of 1899 "For the Peaceful Settlement of International Disputes," is more fully dealt with in Arts. 9-36 of the Convention as amended in 1907.
Par. 4.—The amended Convention, as a whole, is still, like its predecessor, purely facultative. The Russian proposal to make resort to arbitration universally obligatory in a list of specified cases, unless when the "vital interests or national honour" of States might be involved, though negatived in 1899, was renewed in 1907, in different forms, by several Powers, which eventually concurred in supporting the Anglo-Portuguese-American proposal, according to which, differences of a juridical character, and especially those relating to the interpretation of treaties, are to be submitted to arbitration, unless they affect the vital interests, independence, or honour, of the States concerned, or the interests of third States; while all differences as to the interpretation of treaties relating to a scheduled list of topics, or as to the amount of damages payable, where liability to some extent is undisputed, are to be so submitted without any such reservation. This proposal was accepted by thirty-two Powers, but as nine Powers opposed it, and three abstained from voting, it failed to become a convention. The delegates to the Conference of 1907 went, however, so far as to include in their "Final Act" a statement to the effect that they were unanimous: (1) "in recognising the principle of obligatory arbitration"; (2) "in declaring that certain differences, and, in particular, such as relate to the interpretation and application of the provisions of International Conventions, are suitable for being submitted to obligatory arbitration, without any reservations."
Par. 5.—The Convention between France and Great Britain, concluded on October 14, 1903, for five years, and renewed in 1908, and again in 1913, for a like period, by which the parties agree to submit to The Hague tribunal any differences which may arise between them, on condition "that they do not involve either the vital interests, or the independence, or honour of the two contracting States, and that they do not affect the interests of a third Power," has served as a model or "common form," for a very large number of conventions to the same effect, entered into between one State and another. The Convention of April 11, 1908, between Great Britain and the United States is substantially of this type.
But see now the three letters which follow.
THE LEAGUE OF NATIONS
Sir,—The League is unquestionably "a brave design." Sympathy with its objects and some hope that they may be realised have induced myself, as, doubtless many others, to abstain from criticising the way in which the topic has been handled by the representatives of the victorious Powers. Recent discussions seem, however, to render such reticence no longer desirable.
It begins to be recognised that, as some of us have all along held to be the case, a serious mistake was made by the Paris delegates when they combined in one and the same document provisions needed for putting an end to an existing state of war with other provisions aiming at the creation in the future of a new supernational society. Two matters so wholly incongruous in character should surely have been dealt with separately. Whether it is now too late to attempt a remedy for the consequences of this unfortunate combination is a question which can be answered only by the diplomatists whose business it is to be intimately in touch with the susceptibilities of the various nations concerned. In the meantime, however, on the assumption that this state of things is productive of regrettable results, I may perhaps venture to indicate, recommending their adoption, the steps which appear to be required for the reformation of the Treaty as drafted. My suggestions would run as follows:—
(1) Subtract from the Treaty of Versailles, Parts I. and XIII., the former constituting a League of Nations, the latter, in pursuance of a recital that universal peace "can be established only if it is based upon social justice," wholly occupied with a sufficiently ambitious scheme for the regulation by the League of all questions relating to "Labour" which may arise within its jurisdiction.
(2) Let Part I., with Part XIII. annexed, constitute a new and independent Treaty; to be, as such, submitted to the Powers for further consideration. (The opportunity might be taken of ridding it of all references to a system of "mandates," which might very probably lead to jealousies and misunderstandings.)
(3) Parts II. to XII., XIV., and XV. would then constitute the real Treaty of Peace, in which it would, however, be necessary in the numerous articles attributing functions, for the most part of a temporary character, the "League of Nations," to substitute for any mention of the League words descriptive of some other authority, yet to be created, such as, for instance, "a Commission to be constituted by the principal Allied and Associated Powers."
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 16 (1919).
Sir,—Let me assure Lord Robert Cecil that I am perfectly serious in giving expression to a long-felt wish that the Treaty of Peace could be relieved of articles relating exclusively to an as yet to be created League of Nations, and in proceeding to indicate the steps that must be taken if this reform is to be effected.
It can hardly be necessary also to assure Lord Robert that I am fully aware of the formidable, though perhaps not insuperable, difficulties which would beset any efforts to carry out my suggestions. He may have inferred so much from my letter of the 16th, in which, treating the question whether it is now too late to attempt a remedy for the existing state of things as beyond the competence of an outsider, I describe it as one which can be answered "only by the diplomatists whose business it is to be intimately in touch with the susceptibilities of the various nations concerned."
On a point of detail, I am surprised that Lord Robert is unwilling that the contents of Part XIII. should be removed to their natural context, on the ground that the Labour organisation might be annoyed if this were done. I am, however, confident that the organisation is too intelligent not to see that it would lose nothing if the articles in which it is interested were made an integral part of a Convention constituting a League of Nations; the League being already solely charged with giving effect to the articles in question.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 20 (1919).
Sir,—Professor Alison Phillips is not quite accurate in attributing to me a belief that the task of amending the Treaty of Versailles is "not beyond the powers of competent diplomatists." No such belief is expressed in my letter of December 16, in which I was careful to admit that the question, "whether it is now too late to attempt" the reform which appears to me to be desirable is one "which can be answered only by the diplomatists."
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, January 5 (1920).
* * * * *
SECTION 2
Pacific Reprisals
The four letters next following were suggested by the ambiguous character of the blockades instituted by France against Siam in 1893, by the Great Powers against Crete in 1897, and by Great Britain, Germany, and Italy, against Venezuela in 1902. The object, in each case, was to explain the true nature of the species of reprisals known as "Pacific Blockade," and to point out the difference between the consequences of such a measure and those which result from a "Belligerent Blockade." A fifth letter, written with reference to the action of the Netherlands against Venezuela in 1908, emphasises the desirability of more clearly distinguishing between war and reprisals. On the various applications of a blockade in time of peace, see the author's Studies in International Law, pp. 130-150.
THE BLOCKADE OF THE MENAM
Sir,—Upon many questions of fact and of policy involved in the quarrel between France and Siam it may be premature as yet to expect explicit information from the French Government; but there should not be a moment's doubt as to the meaning of the blockade which has probably by this time been established.
Is France at war with Siam? This may well be the case, according to modern practice, without any formal declaration of war; and it is, for international purposes, immaterial whether the French Cabinet, if it has commenced a war without the sanction of the Chambers, has or has not thereby violated the French Constitution. If there is a war, and if the blockade, being effective, has been duly notified to the neutral Powers, the vessels of those Powers are, of course, liable to be visited, and, if found to be engaged in breach of the blockade, to be dealt with by the French Prize Courts.
Or is France still at peace with Siam, and merely putting upon her that form of pressure which is known as "pacific blockade"?
In this case, since there is no belligerency there is no neutrality, and the ships of States other than that to which the pressure is being applied are not liable to be interfered with. The particular mode of applying pressure without going to war known as "pacific blockade" dates, as is well known, only from 1827. It has indeed been enforced, by England as well as by France, upon several occasions, against the vessels of third Powers; but this practice has always been protested against, especially by French jurists, as an unwarrantable interference with the rights of such Powers, and was acknowledged by Lord Palmerston to be illegal. The British Government distinctly warned the French in 1884 that their blockade of Formosa could be recognised as affecting British vessels only if it constituted an act of war against China; and when the Great Powers in 1886 proclaimed a pacific blockade of the coasts of Greece they carefully limited its operation to ships under the Greek flag.
The Subject has been exhaustively considered by the Institut de Droit International, which, at its meeting at Heidelberg in 1887, arrived at certain conclusions which may be taken to express the view of learned Europe. They are as follows:—
"L'etablissement d'un blocus en dehors de l'etat de guerre ne doit etre considere comme permis par le droit des gens que sous les conditions suivantes:—
"1. Les navires de pavillon etranger peuvent entrer librement malgre le blocus.
"2. Le blocus pacifique doit etre declare et notifie officiellement, et maintenu par une force suffisante.
"Les navires de la puissance bloquee qui ne respectent pas un pareil blocus peuvent etre sequestres. Le blocus ayant cesse, ils doivent etre restitues avec leur cargaisons a leurs proprietaires, mais sans dedommagement a aucun titre."
If the French wish to reap the full advantages of a blockade of the Siamese coast they must be prepared, by becoming belligerent, to face the disadvantages which may result from the performance by this country of her duties as a neutral.
I am, Sir, your obedient servant, T. E. HOLLAND. Athenaeum Club, July 26 (1893).
PACIFIC BLOCKADE
Sir,—The letter signed "M." in your issue of this morning contains, I think, some statements which ought not to pass uncorrected. A "blockade" is, of course, the denial by a naval squadron of access for vessels to a defined portion of the coasts of a given nation. A "pacific blockade" is one of the various methods—generically described as "reprisals," such as "embargo," or seizure of ships on the high seas—by which, without resort to war, pressure, topographically or otherwise limited in extent, may be put upon an offending State. The need for pressure of any kind is, of course, regrettable, the only question being whether such limited pressure be not more humane to the nation which experiences it, and less distasteful to the nation which exercises it, than is the letting loose of the limitless calamities of war.
The opinion of statesmen and jurists upon this point has undergone a change, and this because the practice known as "pacific blockade" has itself changed. The practice, which is comparatively modern, dating only from 1827, was at first directed against ships under all flags, and ships arrested for breach of a pacific blockade were at one time confiscated, as they would have been in time of war. It has been purged of these defects as the result of discussions, diplomatic and scientific. As now understood, the blockade is enforced only against vessels belonging to the "quasi-enemy," and even such vessels, when arrested, are not confiscated, but merely detained till the blockade is raised. International law does not stand still; and having some acquaintance with Continental opinion on the topic under consideration, I read with amazement "M.'s" assertion that "the majority in number," "the most weighty in authority" of the writers on international law "have never failed to protest against such practices as indefensible in principle." The fact is that the objections made by, e.g. Lord Palmerston in 1846, and by several writers of textbooks, to pacific blockade, had reference to the abuses connected with the earlier stages of its development. As directed only against the ships of the "quasi-enemy," it has received the substantially unanimous approbation of the Institut de Droit International at Heidelberg in 1887, after a very interesting debate, in which the advocates of the practice were led by M. Perels, of the Prussian Admiralty, and its detractors by Professor Geffken. It is true that in an early edition of his work upon international law my lamented friend, Mr. Hall, did use the words attributed to him by "M.": "It is difficult to see how a pacific blockade is justifiable." But many things, notably Lord Granville's correspondence with France in 1884 and the blockade of the Greek coast in 1886, have occurred since those words were written. If "M." will turn to a later edition of the work in question he will see that Mr. Hall had completely altered his opinion on the subject, or rather that, having disapproved of the practice as unreformed, he blesses it altogether in its later development. With reference to the utility of the practice, I should like to call the attention of "M." to a passage in the latest edition of Hall's book which is perhaps not irrelevant to current politics:—
"The circumstances of the Greek blockade of 1886 show that occasions may occur in which pacific blockade has an efficacy which no other measure would possess. The irresponsible recklessness of Greece was endangering the peace of the world; advice and threats had been proved to be useless; it was not till the material evidence of the blockade was afforded that the Greek imagination could be impressed with the belief that the majority of the Great Powers of Europe were in earnest in their determination that war should be avoided."
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 5 (1897).
THE VENEZUELAN CONTROVERSY
Sir,—Apart from the practical difficulty, so ably described by Sir Robert Giffen in your issue of this morning, of obtaining compensation in money from a State which seems to be at once bankrupt and in the throes of revolution, not a few questions of law and policy, as to which misunderstanding is more than probable, are raised from day to day by the action of the joint squadrons in Venezuelan waters. It may therefore be worth while to attempt to disentangle the more important of these questions from the rest, and to indicate in each case the principles involved.
1. Are we at war with Venezuela? Till reading the reports of what passed last night in the House of Commons, I should have replied to this question unhesitatingly in the negative. Most people whose attention has been directed to such matters must have supposed that we were engaged in the execution of "reprisals," the nature and legitimacy of which have long been recognised by international law. They consist, of course, in the exertion of pressure, short of war; over which they possess the following advantages: They are strictly limited in scope; they cease, when their object has been attained, without the formalities of a treaty of peace; and, no condition of "belligerency" existing between the Powers immediately concerned, third Powers are not called upon to undertake the onerous obligations of "neutrality." The objection sometimes made to reprisals, that they are applicable only to the weaker Powers, since a strong Power would at once treat them as acts of war, is indeed the strongest recommendation of this mode of obtaining redress. To localise hostile pressure as far as possible, and to give to it such a character as shall restrict its incidence to the peccant State, is surely in the interest of the general good. That the steps taken are such as would probably, between States not unequally matched, cause an outbreak of war cannot render them inequitable in cases where so incalculable an evil is unlikely to follow upon their employment.
2. The justification of a resort either to reprisals or to war, in any given case, depends, of course, upon the nature of the acts complained of, and upon the validity of the excuses put forward either for the acts themselves, or for failure to give satisfaction for them. The British claims against Venezuela seem to fall into three classes. It will hardly be disputed that acts of violence towards British subjects or vessels, committed under State authority, call for redress. Losses by British subjects in the course of civil wars would come next, and would need more careful scrutiny (on this point the debates and votes of the Institut de Droit International, at its meeting at Neuchatel in 1900, may be consulted with advantage). Last of all would come the claims of unpaid bondholders, as to which Mr. Balfour would seem to endorse, in principle, the statement made in 1880 by Lord Salisbury who, while observing that "it would be an extreme assertion to say that this country ought never to interfere on the part of bondholders who have been wronged," went on to say that "it would be hardly fair if any body of capitalists should have it in their power to pledge the people of this country to exertions of such an extensive character.... They would be getting the benefit of an English guarantee without paying the price of it."
3. Reprisals may be exercised in many ways; from such a high-handed act as the occupation of the Principalities by Russia in 1853, to such a mere seizure of two or three merchant vessels as occurred in the course of our controversy with Brazil in 1861. In modern practice, these measures imply a temporary sequestration, as opposed to confiscation or destruction, of the property taken. In the belief that reprisals only were being resorted to against Venezuela one was therefore glad to hear that the sinking of gunboats by the Germans had been explained as rendered necessary by their unseaworthiness.
4. Pacific reprisals should also, according to the tendency of modern opinion and practice, be so applied as not to interfere with the interests of third Powers and their subjects. This point has been especially discussed with reference to that species of reprisal known as a "pacific blockade," of which some mention has been made in the present controversy. The legitimacy of this operation, though dating only from 1827, if properly applied, is open to no question. Its earlier applications were, no doubt, unduly harsh, not only towards the peccant State, but also towards third States, the ships of which were even confiscated for attempting to break a blockade of this nature. Two views on this subject are now entertained—viz. (1) that the ships of third Powers breaking a pacific blockade may be turned back with any needful exertion of force, and, if need be, temporarily detained; (2) that they may not be interfered with. The former view is apparently that of the German Government. It was certainly maintained by M. Perels, then as now the adviser to the German Admiralty, during the discussion of the subject by the Institut de Droit International at Heidelberg in 1887. The latter view is that which was adopted by the Institut on that occasion. It was maintained by Great Britain, with reference to the French blockade of Formosa in 1884; was acted on by the allied Powers in the blockade of the coast of Greece, instituted in 1886; and is apparently put forward by the United States at the present moment.
5. If, however, we are at war with Venezuela (as will, no doubt, be the case if we proclaim a belligerent blockade of the coast, and may at any moment occur, should Venezuela choose to treat our acts, even if intended only by way of reprisals, as acts of war), the situation is changed in two respects: (1) the hostilities which may be carried on by the allies are no longer localised, or otherwise limited, except by the dictates of humanity; (2) third States become ipso facto "neutrals," and, as such, subject to obligations to which up to that moment they had not been liable. Whatever may have previously been the case, it is thenceforth certain that their merchant vessels must respect the (now belligerent) blockade, and are liable to visit, search, seizure, and confiscation if they attempt to break it.
6. If hostile pressure, whether by way of reprisals or of war, is exercised by the combined forces of allies, the terms on which this is to be done must obviously be arranged by previous agreement. More especially would this be requisite where, as in the case of Great Britain and Germany, different views are entertained with reference to the acts which are permissible under a "pacific blockade."
7. When, besides the Power, or Powers, putting pressure upon a given State, with a view to obtaining compensation for injuries received from it, other Powers, though taking no part in what is going on, give notice that they also have claims against the same offender; delicate questions may obviously arise between the creditors who have and those who have not taken active steps to make their claims effective. In the present instance, France is said to assert that she has acquired a sort of prior mortgage on the assets of Venezuela; and the United States, Spain, and Belgium declare themselves entitled to the benefit of the "most-favoured-nation clause" when those assets are made available for creditors. What principles are applicable to the solution of the novel questions suggested by these competing claims?
8. It is satisfactory to know, on the highest authority, that the "Monroe doctrine" is not intended to shield American States against the consequences of their wrongdoing; since the cordial approval of the doctrine which has just been expressed by our own Government can only be supposed to extend to it so far as it is reasonably defined and applied. Great Britain, for one, has no desire for an acre of new territory on the American continent. The United States, on the other hand, will doubtless readily recognise that, if international wrongs are to be redressed upon that continent, aggrieved European Powers may occasionally be obliged to resort to stronger measures than a mere embargo on shipping, or the blockade (whether "pacific" or "belligerent") of a line of coast.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 18 (1902).
THE VENEZUELA PROTOCOL
Sir,—The close (for the present, at any rate) of the Venezuelan incident will be received with general satisfaction. One of the articles of the so-called "protocol" of February 18 seems, however, to point a moral which one may hope will not be lost sight of in the future—viz. the desirability of keeping unblurred the line of demarcation between such unfriendly pressure as constitutes "reprisals" and actual war.
After all that has occurred—statements in Parliament, action of the Governor of Trinidad in bringing into operation the dormant powers of the Supreme Court of the island as a prize Court, &c.—one would have supposed that there could be no doubt, though no declaration had been issued, that we were at war with Venezuela.
Our Government has, therefore, been well advised in providing for the renewal of any treaty with that Power which may have been abrogated by the war; but it is curious to find that the article (7) of the protocol which effects this desirable result begins by a recital to the effect that "it may be contended that the establishment of a blockade of the Venezuelan ports by the British naval forces has ipso facto created a state of war between Great Britain and Venezuela."
It is surely desirable that henceforth Great Britain should know, and that other nations should at least have the means of knowing, for certain, whether she is at war or at peace.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 17 (1903).
WAR AND REPRISALS
Sir,—Professor Westlake's interesting letter as to the measures recently taken by the Netherlands Government in Venezuelan waters opportunely recalls attention to a topic upon which I addressed you when, six years ago, our own Government was similarly engaged in putting pressure upon Venezuela—viz. the desirability of drawing a clear line between war and reprisals. Perhaps I may now be allowed to return, very briefly, to this topic, with special reference to Professor Westlake's remarks.
In any discussion of the questions involved, we ought, I think, clearly to realise that The Hague Convention, No. iii. of 1907, has no application to any measures not amounting to war. The "hostilities" mentioned in Art. 1 of the Convention are, it will be observed, exclusively such as must not commence without either a "declaration of war," or "an ultimatum with a conditional declaration of war"; and Art. 2 requires that the "state of war" thus created shall be notified to "neutral Powers." There are, of course, no Powers answering to this description till war has actually broken out. Neutrality presupposes belligerency. Any other interpretation of the Convention would, indeed, render "pacific blockades" henceforth impossible.
In the next place, we must at once recognise that the application of the term "reprisals," whatever may have been its etymological history, must no longer be restricted to seizure of property. It has now come to cover, and it is the only term which does cover generically, an indeterminate list of unfriendly acts, such as embargo, pacific blockade, seizure of custom-houses, and even occupation of territory, to which resort is had in order to obtain redress from an offending State without going to war with it. The pressure thus exercised, unlike the unlimited licentia laedendi resulting from a state of war, is localised and graduated. It abrogates no treaties, and terminates without a treaty of peace. It affects only indirectly, if at all, the rights of States which take no part in the quarrel.
The questions which remain for consideration would seem to be the following:—
1. Would it be feasible to draw up a definite list of the measures which may legitimately be taken with a view to exercising pressure short of war?—I think not. States differ so widely in offensive power and vulnerability that it would be hardly advisable thus to fetter the liberty of action of a State which considers itself to have been injured.
2. Ought it to be made obligatory that acts of reprisal should be preceded, or accompanied, by a notification to the State against which they are exercised that they are reprisals and not operations of war?—This would seem to be highly desirable; unless indeed it can be assumed that, in pursuance of The Hague Convention of 1907, no war will henceforth be commenced without declaration.
8. Ought a statement to the like effect to be made to nations not concerned in the quarrel?—This would, doubtless, be convenient, unless the non-receipt by them of any notification of a "state of war," in pursuance of the Convention, could be supposed to render such a statement superfluous.
On the ambiguous character sometimes attaching to reprisals as now practised, I may perhaps refer to an article in the Law Quarterly Review for 1903, entitled "War Sub Modo."
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 26 (1908).
The operations against Venezuela which were closed by the protocol of February 13, 1903, had given rise to the enunciation of the so-called "Drago doctrine," in a despatch, addressed on December 29 of the preceding year, by the Argentine Minister for Foreign Affairs to the Government of the United States, which asserts that "public indebtedness cannot justify armed intervention by a European Power, much less material occupation by it of territory belonging to any American nation." The reply of the United States declined to carry the "Monroe doctrine" to this length, citing the passage in President Roosevelt's message in which he says: "We do not guarantee any State against punishment, if it misconducts itself, provided such punishment does not take the form of the acquisition of territory by any non-American Power."
It is, however, now provided by The Hague Convention, No. ii. of 1907, ratified by Great Britain on November 27, 1909, that "the contracting Powers have agreed not to have recourse to armed force for the recovery of contractual debts, claimed from the Government of a country by the Government of another country, as being due to its subjects. This stipulation shall have no application when the debtor State declines, or leaves unanswered, an offer of arbitration, or, having accepted it, renders impossible the conclusion of the terms of reference (compromis), or, after the arbitration, fails to comply with the arbitral decision."
CHAPTER II
STEPS TOWARDS A WRITTEN LAW OF WAR
A large body of written International Law, with reference to the conduct of warfare, has been, in the course of the last half-century, and, more especially, in quite recent years, called into existence by means of General Conventions, or Declarations, of which mention must frequently be made in the following pages. Such are:—
(i.) With reference to war, whether on land or at sea: the Declaration of St. Petersburg, of 1868, as to explosive bullets; the three Hague Declarations of 1899 (of which the first was repeated in 1907), as to projectiles from balloons, projectiles spreading dangerous gases, and expanding bullets; The Hague Convention, No. iii. of 1907 as to Declaration of War; all ratified by Great Britain, except the Declaration of St. Petersburg, which was thought to need no ratification.
(ii.) With reference only to war on land: the Geneva Convention of 1906 (superseding that of 1864) as to the sick and wounded, which was generally ratified, though by Great Britain only in 1911 (it was extended to maritime warfare by Conventions iii. of 1899 and x. of 1907, both ratified by Great Britain, cf. infra, Ch. VI. Section 10); the Hague Conventions of 1907, No. iv. (superseding the Convention of 1899) as to the conduct of warfare, and No. v. as to neutrals, of which only the former has as yet been ratified by Great Britain.
(iii.) With reference only to war at sea: the Declaration of Paris, of 1856, supposed apparently to need no ratification (to which the United States is now the only important Power which has not become a party), as to privateering, combination of enemy and neutral property and blockades; The Hague Conventions of 1907, No. vi. as to enemy merchant vessels at outbreak, No. vii. as to conversion of merchantmen into warships, No. viii. as to mines, No. ix. as to naval bombardments, No. x. as to the sick and wounded, No. xi. as to captures, No. xii. as to an International Prize Court, supplemented by the Convention of 1910, No. xiii. as to neutrals. It must be observed that, of these Conventions, Great Britain has ratified only vi., vii., viii., ix., and x., the three last subject to reservations. The Declaration of London of 1909, purporting to codify the laws of naval warfare as to blockade, contraband, hostile assistance, destruction of prizes, change of flag, enemy character, convoy, resistance and compensation, and so to facilitate the working of the proposed International Prize Court, if, and when, this Court should come into existence, has failed to obtain ratification, as will be hereafter explained.
Concurrently with the efforts which have thus been made to ascertain the laws of war by general diplomatic agreement, the way for such agreement has been prepared by the labours of the Institut de Droit International, and by the issue by several governments of instructions addressed to their respective armies and navies.
The Manuel des Lois de la Guerre sur Terre, published by the Institut in 1880, is the subject of the two letters which immediately follow. Their insertion here, although the part in them of the present writer is but small, may be justified by the fact that they set out a correspondence which is at once interesting (especially from its bearing upon the war of 1914) and not readily elsewhere accessible.
The remaining letters in this chapter relate to the Naval War Code, issued by the Government of the United States in 1900, but withdrawn in 1904, though still expressing the views of that Government, for reasons specified in a note to the British charge d'affaires at Washington and printed in Parl. Papers, Miscell. No. 5 (1909), p. 8. The United States, it will be remembered, were also the first Power to attempt a codification of the laws of war on land, in their Instructions for the Government of Armies of the United States, issued in 1863, and reissued in 1898. Some information as to this and similar bodies of national instructions may be found in the present writer's Studies in International Law, 1898, p. 85. Cf. his Manual of Naval Prize Law, issued by authority of the Admiralty in 1888, his Handbook of the Laws and Customs of War on Land, issued by authority to the British Army in 1904, and his The Laws of War on Land (written and unwritten), 1908. The Institut de Droit International, which has been engaged for some years upon the Law of War at Sea, by devoting the whole of its session at Oxford, in 1913, to the discussion of the subject, produced a Manuel des Lois de la Guerre sur Mer, framed in accordance with the now-accepted view which sanctions the capture of enemy private property at sea. It is to be followed by a manual framed in accordance with the contrary view. Cf. the letters upon the Declaration of London, in Ch. VII. Section 10, infra.
COUNT VON MOLTKE ON THE LAWS OF WARFARE
Sir,—You may perhaps think that the accompanying letter, recently addressed by Count von Moltke to Professor Bluntschli, is of sufficient general interest to be inserted in The Times. It was written with reference to the Manual of the Laws of War which was adopted by the Institut de Droit International at its recent session at Oxford. The German text of the letter will appear in a few days at Berlin. My translation is made from the proof-sheets of the February number of the Revue de Droit International, which will contain also Professor Bluntschli's reply.
Your obedient servant, T. E. HOLLAND. Oxford, January 29 (1881).
"Berlin, Dec. 11, 1880.
"You have been so good as to forward to me the manual published by the Institut de Droit International, and you hope for my approval of it. In the first place I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed; courage and the abnegation of self, faithfulness to duty, and the spirit of sacrifice: the soldier gives his life. Without war the world would stagnate, and lose itself in materialism.
"I agree entirely with the proposition contained in the introduction that a gradual softening of manners ought to be reflected also in the mode of making war. But I go further, and think the softening of manners can alone bring about this result, which cannot be attained by a codification of the law of war. Every law presupposes an authority to superintend and direct its execution, and international conventions are supported by no such authority. What neutral States would ever take up arms for the sole reason that, two Powers being at war, the 'laws of war' had been violated by one or both of the belligerents? For offences of that sort there is no earthly judge. Success can come only from the religious moral education of individuals and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it so far as the exceptional circumstances of war permit.
"This being so, it is necessary to recognise also that increased humanity in the mode of making war has in reality followed upon the gradual softening of manners. Only compare the horrors of the Thirty Years' War with the struggles of modern times.
"A great step has been made in our own day by the establishment of compulsory military service, which introduces the educated classes into armies. The brutal and violent element is, of course, still there, but it is no longer alone, as once it was. Again, Governments have two powerful means of preventing the worst kind of excesses—strict discipline maintained in time of peace, so that the soldier has become habituated to it, and care on the part of the department which provides for the subsistence of troops in the field. If that care fails, discipline can only be imperfectly maintained. It is impossible for the soldier who endures sufferings, hardships, fatigues, who meets danger, to take only 'in proportion to the resources of the country.' He must take whatever is needful for his existence. We cannot ask him for what is superhuman.
"The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable with that view to employ all methods save those which are absolutely objectionable ('dazu muessen alle nicht geradezu verwerfliche Mittel freistehen'). I can by no means profess agreement with the Declaration of St. Petersburg when it asserts that 'the weakening of the military forces of the enemy' is the only lawful procedure in war. No, you must attack all the resources of the enemy's Government: its finances, its railways, its stores, and even its prestige. Thus energetically, and yet with a moderation previously unknown, was the late war against France conducted. The issue of the campaign was decided in two months, and the fighting did not become embittered till a revolutionary Government, unfortunately for the country, prolonged the war for four more months.
"I am glad to see that the manual, in clear and precise articles, pays more attention to the necessities of war than has been paid by previous attempts. But for Governments to recognise these rules will not be enough to insure that they shall be observed. It has long been a universally recognised custom of warfare that a flag of truce must not be fired on, and yet we have seen that rule violated on several occasions during the late war.
"Never will an article learnt by rote persuade soldiers to see a regular enemy (sections 2-4) in the unorganised population which takes up arms 'spontaneously' (so of its own motion) and puts them in danger of their life at every moment of day and night. Certain requirements of the manual might be impossible of realisation; for instance, the identification of the slain after a great battle. Other requirements would be open to criticism did not the intercalation of such words as 'if circumstances permit,' 'if possible,' 'if it can be done,' 'if necessary,' give them an elasticity but for which the bonds they impose must be broken by inexorable reality.
"I am of opinion that in war, where everything must be individual, the only articles which will prove efficacious are those which are addressed specifically to commanders. Such are the rules of the manual relating to the wounded, the sick, the surgeons, and medical appliances. The general recognition of these principles, and of those also which relate to prisoners, would mark a distinct step of progress towards the goal pursued with so honourable a persistency by the Institut de Droit International.
"COUNT VON MOLTKE, Field-Marshal-General."
PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE
Sir,—In accordance with a wish expressed in several quarters, I send you, on the chance of your being able to make room for it, a translation of Professor Bluntschli's reply to the letter from Count von Moltke which appeared in The Times of the 1st inst.
Your obedient servant, T. E. HOLLAND. Oxford, February (1881).
"Christmas, 1880.
"I am very grateful for your Excellency's detailed and kind statement of opinion as to the manual of the laws of war. This statement invites serious reflections. I see in it a testimony of the highest value, of historical importance; and I shall communicate it forthwith to the members of the Institut de Droit International.
"For the present I do not think I can better prove my gratitude to your Excellency than by sketching the reasons which have guided our members, and so indicating the nature of the different views which prevail upon the subject.
"It is needless to say that the same facts present themselves in a different light and give a different impression as they are looked at from the military or the legal point of view. The difference is diminished, but not removed, when an illustrious general from his elevated position takes also into consideration the great moral and political duties of States, and when, on the other hand, the representatives of science of international law set themselves to bring legal principles into relation with military necessities.
"For the man of arms the interest of the safety and success of the army will always take precedence of that of the inoffensive population, while the jurist, convinced that law is the safeguard of all, and especially for the weak against the strong, will ever feel it a duty to secure for private individuals in districts occupied by an enemy the indispensable protection of law. There may be members of the Institut who do not give up the hope that some day, thanks to the progress of civilisation, humanity will succeed in substituting an organised international justice for the wars which now-a-days take place between sovereign States. But the body of the Institut, as a whole, well knows that that hope has no chance of being realised in our time, and limits its action in this matter to two principal objects, the attainment of which is possible:—
"1. To open and facilitate the settlement of trifling disputes between nations by judicial methods, war being unquestionably a method out of all proportion in such cases.
"2. To aid in elucidating and strengthening legal order even in time of war.
"I acknowledge unreservedly that the customs of warfare have improved since the establishment of standing armies, a circumstance which has rendered possible a stricter discipline, and has necessitated a greater care for the provisionment of troops. I also acknowledge unreservedly that the chief credit for this improvement is due to military commanders. Brutal and barbarous pillage was prohibited by generals before jurists were convinced of its illegality. If in our own day a law recognised by the civilised world forbids, in a general way, the soldier to make booty in warfare on land, we have here a great advance in civilisation, and the jurists have had their share in bringing it about. Since compulsory service has turned standing armies into national armies, war has also become national. Laws of war are consequently more than ever important and necessary, since, in the differences of culture and opinion which prevail between individuals and classes, law is almost the only moral power the force of which is acknowledged by all, and which binds all together under common rules. This pleasing and cheering circumstance is one which constantly meets us in the Institut de Droit International. We see a general legal persuasion ever in process of more and more distinct formation uniting all civilised peoples. Men of nations readily disunited and opposed—Germans and French, English and Russians, Spaniards and Dutchmen, Italians and Austrians—are, as a rule, all of one mind as to the principles of international law.
"This is what makes it possible to proclaim an international law of war, approved by the legal conscience of all civilised peoples; and when a principle is thus generally accepted, it exerts an authority over minds and manners which curbs sensual appetites and triumphs over barbarism. We are well aware of the imperfect means of causing its decrees to be respected and carried out which are at the disposal of the law of nations. We know also that war, which moves nations so deeply, rouses to exceptional activity the good qualities as well as the evil instincts of human nature. It is for this very reason that the jurist is impelled to present the legal principles, of the need for which he is convinced, in a clear and precise form, to the feeling of justice of the masses, and to the legal conscience of those who guide them. He is persuaded that his declaration will find a hearing in the conscience of those whom it principally concerns, and a powerful echo in the public opinion of all countries.
"The duty of seeing that international law is obeyed, and of punishing violations of it, belongs, in the first instance, to States, each within the limits of its own supremacy. The administration of the law of war ought therefore to be intrusted primarily to the State which wields the public power in the place where an offence is committed. No State will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international duties; it will not do so even when it knows that it runs no risk of war on the part Of neutral States. Every State, even the most powerful, will gain sensibly in honour with God and man if it is found to be faithful and sincere in respect and obedience to the law of nations.
"Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary authority, ought to facilitate the enforcement of discipline in the Army and help to prevent many faults and many harmful excesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation—that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way.
"With reference to several rules being stated with the qualifications 'if possible,' 'according to circumstances,' we look on this as a safety-valve, intended to preserve the inflexible rule of law from giving way when men's minds are overheated in a struggle against all sorts of dangers, and so to insure the application of the rules in many other instances. Sad experience teaches us that in every war there are numerous violations of law which must unavoidably remain unpunished, but this will not cause the jurist to abandon the authoritative principle which has been violated. Quite the reverse. If, for instance, a flag of truce has been fired upon, in contravention of the law of nations, the jurist will uphold and proclaim more strongly than ever the rule that a flag of truce is inviolable.
"I trust that your Excellency will receive indulgently this sincere statement of my views, and will regard it as an expression of my gratitude, as well as of my high personal esteem and of my respectful consideration.
"Dr. BLUNTSCHLI, Privy Councillor, Professor."
THE UNITED STATES NAVAL WAR CODE.[1]
Sir,—The "Naval War Code" of the United States, upon which an interesting article appeared in The Times of Friday last, in so well deserving of attention in this country that I may perhaps be allowed to supplement the remarks of your Correspondent from the results of a somewhat minute examination of the code made shortly after its publication.
One notes, in the first place, that the Government of the United States does not shirk responsibility. It puts the code into the hands of its officers "for the government of all persons attached to the naval service," and is doubtless prepared to stand by the rules contained in it, as being in accordance with international law. These rules deal boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon which the Brussels, and after it The Hague, Conference preferred to keep silence; and they take a definite line on many questions upon which there are wide differences of opinion. On most debatable points, the rules are in accordance with the views of this country—e.g. as to the right of search (Art. 22), as to the two-fold list of contraband (Arts. 34-36), as to the moment at which the liability of a blockade-runner commences (Art. 44), and as to the capture of private property (Art. 14), although the prohibition of such capture has long been favoured by the Executive of the United States, and was advocated by the American delegates at The Hague Conference. So also Arts. 34-36, by apparently taking for granted the correctness of the rulings of the Supreme Court in the Civil War cases of the Springbok and the Peterhoff with reference to what may be described as "continuous carriage," are in harmony with the views which Lord Salisbury recently had occasion to express as to the trade of the Bundesrath and other German vessels with Lorenzo Marques. It must be observed, on the other hand, that Art. 30 flatly contradicts the British rule as to convoy; while Art. 3 sets out The Hague Declaration as to projectiles dropped from balloons, to which this country is not a party. Art. 7 departs from received views by prohibiting altogether the use of false colours, and Art. 14 (doubtless in pursuance of the recent decision of the Supreme Court in the Paquete Habana), by affirming the absolute immunity of coast fishing vessels, as such, from capture.
On novel questions the code is equally ready with a solution. It speaks with no uncertain voice on the treatment of mail steamers and mail-bags (Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent points out, the views which I ventured to maintain in your columns when the question was raised during the war of 1898.[2] I may also, by the way, claim the support of the code for the view taken by me, in a, correspondence also carried on in your columns during the naval manoeuvres of 1888, of the bombardment of open coast towns.[3] Art. 4 sets out substantially the rules upon this subject for which I secured the imprimatur of the Institut de Droit International in 1896.
Secondly, the code is so well brought up to date as to incorporate (Arts. 21-29) the substance of The Hague Convention, ratified only in September last, for applying to maritime warfare the principles of the Convention of Geneva. Art. 10 of The Hague Convention has been reproduced in the code, in forgetfulness perhaps of the fact that that article has not been ratified.
Thirdly, the code contains, very properly, some general provisions applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).
Fourthly, it is clearly expressed; and it is brief, consisting of only 54 articles, occupying 22 pages.
Fifthly, it deals with two very distinct topics—viz. the mode of conducting hostilities against the forces of the enemy, and the principles applicable to the making prize of merchant vessels, which as often as not may be the property of neutrals. These topics are by no means kept apart as they might be, articles on prize occurring unexpectedly in the section avowedly devoted to hostilities.
It is worth considering whether something resembling the United States code would not be found useful in the British Navy. Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 8 (1901).
NOTES - 1: Withdrawn in 1904. - 2: Infra, Ch. VII. Section 6. - 3: Infra, Ch. VI. Section 14.
A NAVAL WAR CODE
Sir,—It is now nearly a year ago since I ventured to suggest in your columns (for April 10, 1901) that something resembling the United States "Naval War Code," dealing with "the laws and usages of war at sea," would be found useful in the British Navy.
The matter is, however, not quite so simple as might be inferred from some of the allusions to it which occurred during last night's debate upon the Navy Estimates. Upon several disputable and delicate questions the Government of the United States has not hesitated to express definite views; and they are not always views which the Government of our own country would be prepared to endorse. For some remarks upon these questions in detail, and upon the code generally, I must refer to my former letter, but may perhaps be allowed to quote its concluding words, which were to the following effect:—
"Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind."
Before issuing such a code our authorities would have to decide—first, what are the classes of topics as to which it is desirable to give definite instructions to naval officers; and, secondly, with reference to topics, to be included in the instructions, as to which there exist international differences of view, what is, in each case, the view by which the British Government is prepared to stand.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 12 (1902).
CHAPTER III
TERMINOLOGY
INTERNATIONAL TERMINOLOGY
Sir,—Demands for the punishment of the ex-Kaiser have produced many "curiosities of literature," sometimes even over the signatures of men deservedly respected as authorities upon subjects which they have made their own; but ne sutor supra crepidam. A.B.,[1] for instance, wrote of the Kaiser as guilty of "an indictable offence." X.Y.[1] naturally protests against this misuse of terminology, which is, indeed, far more specifically erroneous than was the popular application, which you allowed me to criticise, of the terms "murder" and "piracy" to certain detestable acts perpetrated under Government authority.[2] He goes on to give an elaborate, though perhaps hardly necessary, explanation that breaches of that generally accepted body of rules to be followed by States inter se, which is known as "international law," can be enforced, in the last resort, only by hostile State action—a fact which he seems to suppose may entitle him to qualify the rules as "a mockery."
X.Y.[1] then proceeds to give an account of the so-called "private international law" which surely needs revision for the benefit of any "man in the street" who may care to hear about it. X.Y.[1] defines it as "that part of the law of each separate country, as administered in its own Courts, which deals with international matters," and he enumerates as such matters "prize, contraband, blockade, the rights of ambassadors." In fact none of these matters are within the scope of "private international law," but are governed by "(public) international law," non-compliance with which by the Courts or subjects of any State is ground of complaint for the Government of any other State thereby wrongfully affected.
The so-called "private international law," better described as "the conflict of laws," deals, in reality, with the rules which the Courts of each country apply, apart from any international obligation, to the solution of questions, usually between private litigants, in which doubt may arise as to the national law by which a given transaction ought to be governed—e.g. with reference to a contract made in France, but to be performed in England. There is here a "conflict," or "collision," of laws, and it is decided in accordance with rules adopted in the country in which the litigation occurs. These rules have no "international" validity, and the term is applied to them, merely in a popular way, to indicate that a Court may have in some cases to apply the law of a country other than that in which it is sitting. The unfortunate opposition of "public" to "private" international law has to answer for much confusion of thought. "International law," properly so called, has, of course, no need to be described as "public" to distinguish it from rules for solving the "conflicts" of private laws, which are "international" rules only in the sense that laws are sometimes applied in countries other than those in which they are primarily binding.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 19 (1918).
NOTES - 1: Writer's names are omitted as immaterial. - 2: Infra, p. 70.
A full discussion of the topics dealt with in the last paragraph of this letter may be found in my Elements of Jurisprudence, edit. xii., pp. 409-425. A translation, by Professor Nys, of the chapter in which those pages occur, as it stood in edit. i., appeared in the Revue de Droit International, t. xii., pp. 565, &c.
CHAPTER IV
CONVENTIONS AND LEGISLATION
Not a few International Conventions necessitate, before they can be ratified, in order that their provisions may be carried into effect, a certain amount of municipal legislation.
The letters which follow are concerned with some measures introduced into the British Parliament for this purpose, relating respectively to Naval Prize, to the Geneva Convention of 1906, and to Conventions signed at The Hague Peace Conference of 1907. It is with criticisms of Bills dealing with the last-mentioned topic that this chapter is mainly occupied.
GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS
Sir,—You have already allowed me to point out how singularly ill-adapted is the resuscitated "Naval Prize Consolidation Bill"[1] to inform Parliament upon the highly technical points as to which a vote in favour of the Bill might be supposed to imply approval of the Government policy.
Two other Bills have now been presented to the House of Commons in such a shape as to raise a doubt whether the wish of the Government, or of the draftsman, has been that the topics to which they relate shall be discussed en pleine connaissance de cause.
The "Geneva Convention Bill"[2] is intended to facilitate the withdrawal of reservations subject to which the Convention was ratified by Great Britain. These reservations, upon which I insisted at Geneva, somewhat to the surprise of my French and Russian colleagues, relate to Arts. 23, 27, and 28 of the Convention, one of the effects of which would have been to impose upon our Government an obligation to carry through, within five years, an Act of Parliament, making the employment of the Geneva emblem or name, except for military purposes, a criminal offence. Any one who knows something of the difficulties which beset legislation in this country, especially where commercial interests are involved, will see that the performance of such an undertaking might well have proved to be impossible. Though myself strongly in favour of placing, at the proper time and in an appropriate manner, legislative restrictions upon the general use of the emblem and name, I can hardly think the Bill now before Parliament to be well adapted for its purpose. The "Memorandum" prefixed to it ought surely to have stated, in plain language, the effect of the articles in question and the reasons which prevented them from being ratified together with the rest of the Convention. Instead of this, only one of those articles is cited, and few members of Parliament will be aware that an omitted paragraph of that article requires that the use of the emblem or name should be penalised by British law at the latest five years and six months from the date of the British ratification, which was deposited on April 16, 1907—i.e., not later than October 16, 1912. This requirement is not satisfied by the Bill, which, even if passed in the present Session, would preserve intact till 1915 the rights of proprietors of trade-marks, while somewhat harshly rendering forthwith illegal the user of the emblem or name by all other persons.
On the drafting of the "Second Peace Conference Conventions Bill," I will only remark that neither in the preamble nor elsewhere is any information vouchsafed as to the Conventions, out of thirteen drafted at The Hague, which are within the purview of the Bill. The reader is left to puzzle out for himself, supposing him to have the necessary materials at hand, that certain clauses of the Bill relate respectively to certain articles which must be looked for in the Conventions numbered I., V., X., XII., and XIII.
I am, Sir, your obedient servant, T. E. HOLLAND. The Athenaeum, July 7 (1911).
NOTES - 1: This Bill, originally introduced in the House of Commons on June 23 1910, to enable the Government to ratify Hague Convention No xii. of 1907 and the Declaration of London of 1909, was passed by that House on December 7, 1911, but rejected on the 12th of the same month, by 145 to 53 votes, in the House of Lords. Cf. infra, pp. 191-196. - 2: Cf. infra, p. 98. The Bill became an Act, 1 & 2 Geo. 5, c. 20.
Questions were put and objections raised, in the sense of my criticisms upon the drafting of the "Second Peace Conference (Conventions) Bill" of 1911, upon several occasions in the House of Commons, especially in August of that year, and on December 16 the Bill was finally withdrawn. On the re-introduction of the Bill in 1914, see the following letter.
THE PRESENT BILL IN PARLIAMENT
Sir,—In reintroducing their Bill "to make such amendments in the law as are necessary in order to enable certain conventions to be carried into effect," the Government has justified the criticisms which I addressed to you upon the way in which this measure was first presented to Parliament.
I pointed out that neither in the preamble nor elsewhere was any information vouchsafed as to which of "the various conventions drawn up at the second Peace Conference" were within the purview of the Bill. Still less was any clue given to those articles, out of nearly 400 contained in the 13 conventions in question, which are relevant to the proposed legislation. Members of Parliament sufficiently inquisitive not to be inclined to take the measure on trust, were left to puzzle out all this for themselves, but proved so restive under the treatment that the Bill, which was introduced in June, 1911, had to be withdrawn in the following December.
As now resuscitated, the Bill is accompanied by a memorandum containing information which will enable the reader, even though no specialist, supposing him to have the necessary documents at hand, though probably only after several hours of labour, to ascertain what would be the result of passing it. Is it too much to hope that similar aids to the understanding of complicated legislative proposals will be systematically provided in the future?
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 13, 1914.
This Bill was introduced into the House of Commons on April 8, 1914, with a memorandum proposed in compliance with the criticisms, which had led to the withdrawal of its predecessor of 1911. Cf. supra, p. 37. It also was withdrawn, after sustaining much renewed criticism, on July 17, 1914.
THE FOREIGN ENLISTMENT BILL
Sir,—It is doubtless the case, as stated in your leading article of to-day, that the Foreign Enlistment Bill has not received the attention which it deserves. It may perhaps be worth while to mention, as affording some explanation of this neglect, the fact that the memorandum prefixed to the Bill vaguely describes its main object as being to bring our law into conformity with "The Hague Conventions" at large. An ordinary member of Parliament would surely be grateful to be referred specifically to Convention No. xiii., Arts. 8, 17, and 25. He might well shrink from the labour of exploring the hundreds of articles contained in "The Hague Conventions" in order to ascertain which of the articles suggest some modification of the English statute.
I would also venture to suggest that, in Article 1 (1) (b) of the Bill the words "or allows to depart," carried over from the old Act, should be omitted, as of doubtful interpretation. Would it not also be desirable to take this opportunity of severing the enlistment articles of the overgrown principal Act from those forbidding the despatch of ships fitted for hostilities and restricting the hospitality which may be extended to belligerent war ships?
Upon quite a different subject, I should like to answer the question propounded in your article, as to the weight now to be given to the Declaration of London, by saying that no weight should be given to it, except as between Powers who may have ratified it or may have agreed to be temporarily bound by its provisions. One has of late been surprised to read of vessels carrying contraband being allowed to continue their voyage after surrendering the contraband goods, in accordance with a new rule suggested by the Declaration, whereas, under still existing international law, the duty of a captor is to bring in the vessel together with her cargo, in order that the rightfulness of the seizure may be investigated by a Prize Court.
I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 23 (1912).
The Bill of 1912 "to amend the Foreign Enlistment Act, 1870," passed the House of Lords with little comment, but was withdrawn, after much adverse criticism, in the House of Commons on February 12, 1913.
CHAPTER V
THE COMMENCEMENT OF WAR
SECTION 1
Declaration of War
The following letter bears upon the question, much discussed in recent years, of the lawfulness of hostilities commenced without anything amounting to a declaration of war. Although several modern wars, e.g. the Franco-Prussian of 1870, and the Russo-Turkish of 1877, were preceded by declaration, it was hardly possible, in view of the practice of the last two centuries, to maintain, that this was required by international law, and it has never been alleged that any definite interval need intervene between a declaration and the first act of hostilities. On the destruction of the Kowshing, the present writer may further refer to his Studies in International Law, 1898, p. 126, and to Professor Takahashi's International Law during the Chino-Japanese War, 1899, pp. 24, 192. But see now the note at the end of the "Letter" which follows.
THE SINKING OF THE KOWSHING
Sir,—The words of soberness and truth were spoken with reference to the sinking of the Kowshing in the letter from Professor Westlake which you printed on Friday last. Ignorance dies hard, or, after the appearance of that letter and of your remarks upon it, one might have expected that leading articles would be less lavishly garnished with such phrases as "act of piracy," "war without declaration," "insult to the British flag," "condign punishment of the Japanese commander." But these flowers of speech continue to blossom; and, now that the facts of the case seem to be established beyond reasonable doubt by the telegrams of this morning, I should be glad to be allowed to state shortly what I believe will be the verdict of international law upon what has occurred.
If the visiting, and eventual sinking, of the Kowshing occurred in time of peace, or in time of war before she had notice that war had broken out, a gross outrage has taken place. But the facts are otherwise.
In the first place, a state of war existed. It is trite knowledge, and has been over and over affirmed by Courts, both English and American, that a war may legally commence with a hostile act on one side, not preceded by declaration. How frequently this has occurred in practice may be seen from a glance at an historical statement prepared for the War Office by Colonel Maurice a propos of the objections to a Channel tunnel. Whether or no hostilities had previously occurred upon the mainland, I hold that the acts of the Japanese commander in boarding the Kowshing and threatening her with violence in case of disobedience to his orders were acts of war.
In the second place, the Kowshing had notice of the existence of a war, at any rate from the moment when she received the orders of the Japanese commander.
The Kowshing, therefore, before the first torpedo was fired, was, and knew that she was, a neutral ship engaged in the transport service of a belligerent. (Her flying the British flag, whether as a ruse de guerre or otherwise, is wholly immaterial.) Her liabilities, as such ship, were twofold:—
1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a Japanese Prize Court. If, as was the fact, it was practically impossible for a Japanese prize crew to be placed on board of her, the Japanese commander was within his rights, in using any amount of force necessary to compel her to obey his orders.
2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the Kowshing was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled, by the use of all needful force, to prevent from reaching its destination.
The force employed seems not to have been in excess of what might lawfully be used, either for the arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the Kowshing, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation by the Japanese of the usages of civilised warfare (not of the Geneva Convention, which has no bearing upon the question), which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the Belligerents inter se; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the Japanese commander by the rules of chivalrous dealing or of humanity.
Your obedient servant, T. E. HOLLAND. Athenaeum Club, August 6 (1894)
The controversy caused by the sinking of the Kowshing in 1894 was revived by the manner of the Japanese attack upon Port Arthur, in 1904 (see Professor Takahashi's International Law applied to the Russo-Japanese War, 1908, p. 1), and led to a careful study of the subject by a committee of the Institut de Droit International, resulting in the adoption by the Institut, at its Ghent Meeting in 1906, of the following resolutions:—
(1) "It is in conformity with the requirements of International law, to the loyalty which the nations owe to one another in their, mutual relations, as well as to the general interests of all States, that hostilities ought not to commence without previous and unequivocal warning.
(2) "This warning may be given either in the shape of a declaration of war pure and simple, or in the shape of an ultimatum duly notified to the adversary by the State which wishes to begin the war.
(3) "Hostilities must not commence until after the expiration of a delay which would suffice to prevent the rule as to a previous and unequivocal warning from being thought to be evaded." See the Annuaire de l'Institut, t, xxi. p. 292.
In accordance with the principles underlying the first and second of these resolutions, The Hague Convention, No. iii. of 1907 (ratified generally by Great Britain on November 27, 1909), has now laid down as a principle of International Law, binding upon the contracting Powers, that—
(1) "Hostilities between them ought not to commence without a warning previously given and unequivocal, in the form either of a reasoned declaration of war, or of an ultimatum, with a conditional declaration of war."
And the Convention goes on to provide that—
(2) "The state of war ought to be notified without delay to neutral Powers, and shall be of no effect with reference to them, until after a notification, which may be made even telegraphically. Nevertheless, neutral Powers may not plead absence of notification, if it has been shown beyond question that they were in fact cognisant of the state of war." Any reference to the need of an interval between declaration and the first act of hostility (such as is contained in the third of the resolutions of the Institut) was deliberately omitted from the Convention, although a declaration immediately followed by an attack would obviously be of little service to the party attacked. (See the present writer's Laws of War on Land (written and unwritten), 1908, P. 18.)
* * * * *
SECTION 2
The Immediate Effects of the Outbreak of War
Enemy Residents
Before any actual hostilities have taken place, each belligerent acquires, ipso facto, certain new rights over persons and property belonging to the other, which happen to be at the time within its power, e.g. the right, much softened in modern practice, and specifically dealt with in The Hague Convention, No. vi. of 1907, of capturing enemy merchant vessels so situated.
The following letter deals with the permissible treatment of enemy persons so situated; and was suggested by a question asked in the House of Commons on February 25, 1909, by Mr. Arnold-Forster: viz. "What would be the status of officers and men of the regular Army of a hostile belligerent Power, found within the limits of the United Kingdom after an act or declaration of war; and would such persons be liable to be treated as prisoners of war, or would they be despatched under the protection of the Government to join the forces of the enemy?" The general effect of the Attorney-General's reply may be gathered from the quotations from it made in the letter.
The topic was again touched upon on March 3, in a question put by Captain Faber, to which Mr. Haldane replied.
FOREIGN SOLDIERS IN ENGLAND
Sir,—The question raised last night by Mr. Arnold-Forster is one which calls for more careful consideration than it appears yet to have received. International law has in modern times spoken with no very certain voice as to the permissible treatment of alien enemies found within the territory of a belligerent at the outbreak of war. |
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